Victorian Civil and Administrative Tribunal|2000-01-29

King & Others v Colac Otway SC [2000] VCAT 523 (29 January 2000)

s.123 Victorian Civil and Administrative Tribunal Act 1998 - Interim Injunction; s.120 Planning and Environment Act 1987 - Interim Enforcement Order - triable issues - balance of convenience - refusal to give undertaking as to damages.

2. The application for and interim enforcement order pursuant to s.120 Planning and Environment Act 1987 is disallowed.

1. The list of Applicants for an Enforcement Order in the schedule to the application are to file with the Tribunal and serve on all other parties their consent to John King signing the application for Enforcement Order on their behalf.

2. Any party who has not already done so must file with the Tribunal and serve on all other parties any statement of grounds on which it wishes to rely in any matter before the Tribunal on or before 16 February 2000.

3. Any party who intends to rely on a list of documents must file with the Tribunal and serve on all other parties a list and copy of such documents on or before 23 February 2000.

4. Any party who intends to call an expert witness must file with the Tribunal and serve on all other parties a copy of the report of such expert on or before 3 March 2000 and that report is to stand as the evidence in chief of that witness subject to the leave of the Tribunal for that witness to give further evidence in chief.

5. Liberty for any party to apply for further Directions.

6. The matters be listed for hearing for 4 days being 14, 15, 16 and 17 March 2000 at 55 King Street, Melbourne.

Mr D J Williams & Ms S Panopoulos both of Counsel instructed by Thompson & Thompson on behalf of the Applicants.

Mr I McPitt, Best Hooper on behalf of the Responsible Authority.

Mr T Callander, Rigby Cook on behalf of the Respondents.

Mr A Finanzio of Counsel instructed by the Victorian Government Solicitor on behalf of the Secretary of Department of Natural Resources and Environment.

1. There are three applications before the Tribunal in relation to the land situated at 15 Marengo Crescent, Marengo they are an application for review pursuant to s.82 Planning and Environment Act 1987 (1999/083391) brought by John King and Others against the Responsible Authority's decision to grant a permit, an application for declaration pursuant to s.149A Planning and Environment Act 1987 (1999/096627) commenced by the Responsible Authority and an application for an enforcement order pursuant to s.114 Planning and Environment Act 1987 (2000/06736) brought by John King and Others.

2. Arising out of and in relation to the applications there are two preliminary applications by the applicants for review John King and Others, these are an application pursuant to s.123 Victorian Civil and Administrative Tribunal Act 1998 (1999/083391) seeking an interim injunction and similarly an application pursuant to s.120 Planning and Environment Act 1987 seeking an interim enforcement order. It is these two later maters that the Tribunal will consider in this preliminary determination.

3. Mr Williams on behalf of the applicants indicated he wished to proceed in relation to both applications, under s.123 Victorian Civil and Administrative Tribunal Act 1998 and s.120 Planning and Environment Act 1987 although similar in the nature of the orders sought.

That until the hearing and determination of this proceeding Mr and Mrs James by themselves, their servants, agents or howsoever otherwise be restrained from doing or causing to be done any development or works in respect of the proposed development the subject of application no 1999/83391.

The respondents Tony James and Lee James by their servants, agents or howsoever otherwise be stopped until the hearing and determination of application 2000/6736, from developing the subject land (described in application 2000/6736) in accordance with the proposed development the subject of application no 1999/83391.

4. As constituted for the hearing the Tribunal as a legal practitioner can deal with the application for an interim injunction pursuant to s.123(2)(a) Victorian Civil and Administrative Tribunal Act 1998, should however the matter be required to proceed to a full hearing then the Act indicates that only a judicial member being the President or Vice President can hear the application. There is no such limitations attached to the hearing of the s.120 Planning and Environment Act 1987 or the hearing of the s.114 Planning and Environment Act 1987 application.

5. In relation to the orders sought the applicants relied on two affidavits by John King affirmed on 27 January 2000 and 2 February 2000. The affidavits set out some of the background to the matters and what in the applicant's view has taken place on the land since May 1999.

6. The date of May 1999 is referred to as it was the 11 May 1999 that the Respondents applied to the Responsible Authority for a permit for proposed development of Marengo Caravan Park. The proposal was detailed in an attachment to the permit application and detailed as renovations of the existing amenities block, connection to high voltage electricity supply, plumbing works, CFA required works, sealing of external road, children's playground, installation of sign, BBQ and camp kitchen, boom gate, Tourist Cabins, and spa/hot tub.

7. It is understood this was also the proposal presented by the Respondents to the owner of the land, the Minister for Natural Resources and Environment, when requesting consent as required under the Coastal Management Act 1995 to develop the land. A letter attached to the affidavit "JK2/10" dated 15 April 1999 from the Department of Natural Resources and Environment to Mr James grants consent with conditions which included some requirements for approvals by the Responsible Authority. This consent is not a condition precedent to the application for permit.

8. On 5 August 1999 the new Colac Otway Planning Scheme came into force, at this time the Responsible Authority had not determined the permit application. There appears to be some confusion as to what then occurred but it is put that on being advised of changes to the planning scheme the Respondents withdrew their application and made a new application, that at some point in time the Responsible Authority suggested that the Respondents were required to choose which application they wished to rely on, they indicated to the Responsible Authority they wished to rely on the first application and the Responsible Authority proceeded to issue a notice of decision to grant a permit on 24 September 1999.

9. As a result of the notice of decision to grant a permit Mr King and Others who had lodged objections to the permit application lodged with the Tribunal on 18 October 1999 an application for review pursuant to s.82 Planning and Environment Act being 1999/083391. It is understood that shortly after this time both the Responsible Authority and the Respondents received legal advice that no permit was required to place unregistrable movable dwellings (UMD) on the land, (referred to a tourist cabins), and as a result an application for declaration pursuant to s.149A Planning and Environment Act 1987 was lodged with the Tribunal on 2 December 1999.

10. It was contended by the applicants and referred to in Mr King's affidavits that since August 1999 various development and works have occurred on the land in furtherance of the proposed development the subject of the application for review. These matters were referred to in paragraphs 20, 21 and 22 of the applicant's application for an enforcement order. It included levelling, removal of topsoil and vegetation, the installation and connection of high voltage power and the installation on the 18 and 19 December 1999 of two "tourist cabins" and the installation and connection of power, water, sewerage, LPG gas and hot water to the cabins.

11. It is expressed on behalf of the applicants that it is the continuation of these types of works that should be stopped pending the hearing of all the matters before the Tribunal.

12. Mr Williams contended that there are four triable issues in the matters before the Tribunal and that the balance of convenience favours the granting of the orders sought pending the hearing and determination of the applications. He listed as he saw the four triable issues as:

1. Is a permit required for the installation of an unregistrable movable dwelling (UMD) on the subject land?

2. Is the proposed development a permitted use of the land under the COS Planning Scheme (the COS PS) (see cl. 36.03)?

3. Can the occupants proceed with the development in circumstances where no planning permit has been obtained?

4. As a result of the application pursuant to s82 of the P&E Act, will the COS's decision to issue a planning permit be set aside?

13. If there are serious questions to be tried and there is a real prospect of succeeding then it is necessary to consider whether on the balance of convenience interim orders should be made.

14. Mr Pitt on behalf of the Responsible Authority submitted that there was no question to be tried with any real prospect of succeeding either in relation to the use of the site for holiday accommodation or in locating the pre-constructed cabins on the site, the only real issue is whether the installation of anchoring devices constitutes works.

15. The land is zoned Public Conservation and Resource under the Colac Otway Planning Scheme, Clause 36 .03-1 allows without a permit "Camping and caravan park" provided the condition in the column opposite is observed, it was said this was observed as the overall development is being undertaken on behalf of the Minister as the Public Land Manager. "Camping and caravan park" is defined in Clause 74 of the planning scheme to be "Land used to allow accommodation in caravans, cabins, tents or the like".

16. It appeared to be accepted by all parties that a caravan park had existed on this site for a considerable time, possibly in excess of 15 years and certainly prior to the coming into operation of the Planning Scheme on 5 August 1999. There was no evidence to suggest that the use of the land as a caravan park prior to the coming into operation of the Planning Scheme was not a lawful use within the planning scheme. Mr Pitt referred to Norman v Gosford SC (1975) 132 CLR 183 and City of Nunawading v Harrington [1985] VicRp 64; (1985) 55 LGRA 139 which supports the proposition that the intensification of activity for any existing use is not a change of use.

17. However, it is recognised that existing use rights do not confer rights to develop if the development was not being undertaken at the relevant date. It was therefore contended by Mr Pitt that the triable issues referred to by Mr Williams were far too broad and that there were only very narrow issues that were really relevant, namely whether the installation of the cabins were to be classified as "works" requiring a permit.

18. The issues raised by Mr Williams are in the Tribunal's view triable issues. In reaching this conclusion the Tribunal considers it is not clear as to whether the applicants will be successful. If the declaration sought by the Responsible Authority in respect of the UMD is given then the issues contended by the applicants are narrowed to a consideration as to what if any permit is required to construct a building or construct or carry out works which are not exempt from such requirements within the planning scheme, this could in turn result in a limited consideration of the application for review pursuant to s.82 Planning and Environment Act 1987.

19. The Tribunal is then asked once it has found there are triable issues to then consider on the balance of convenience to make interim orders. In requesting this the applicants allege there will be irreparable harm caused to the land if development and works are permitted to continue, the installation of the cabins may give rise to a risk to public safety and further that if the Respondents are not restrained there is a real likelihood that they, the Respondents, would continue to conduct development and works in the furtherance of the proposed development.

20. In support of the contention that irreparable harm will be caused the Tribunal was referred to a 1978 Land Conservation Council Report, and to a 1995 report in relation to the Colac Region Water Authority proposed Wastewater Treatment Plant Site Selection: Environmental Effects Statement, A Survey for Aboriginal and Historical Archaeological Sites which on a map shows the location of an Aboriginal Archaeological Site in the general area of the caravan park land. The Tribunal was not given any evidence as to whether harm had already occurred given the placing already of two cabins on the land. Harm could in the Tribunal's view occur if there was major works being carried out, it is not clear whether it would be irreparable, there was no indication that any works were currently being carried out, nor that any works of the nature alleged having occurred since December 1999, when the two cabins were placed on the land.

21. It was contended that works had been carried out in the connection of the two cabins to water, power and sewerage services, although the photographs shown to the Tribunal by the Responsible Authority showed what appeared to be connection points for such services located at various points as found in any caravan park. The Tribunal was advised there were existing connections and the Tribunal was not presented with any evidence to show the services were not already in existence.

22. The applicants expressed concern that development or works would continue to be carried out despite the issues before the Tribunal. It was contended that despite the application for review of the decision to grant a permit and requests by the owner of the land the Respondents had disregarded these matters and had carried out works including the installation of two cabins, this occurring after an application was lodged with the Tribunal to clarify whether there was a need for a permit.

23. Mr Callander advised the Tribunal the Respondents had themselves lodged the permit application and were not familiar with what did or did not require a permit. That the cabins were installed after the Respondents and the Responsible Authority both obtained legal advice to say no permit was required. It was not until just prior to the matter being listed for a Directions Hearing on 28 January 2000 that the Respondents had involved solicitors in the applications. In advising the Tribunal of these matters it appeared to the Tribunal that it was unlikely that development or works in contention would be carried out although Mr Callander indicated his client was not prepared to give an undertaking to this effect.

24. Mr Callander considered it was not reasonable for his client to give any undertaking to the applicants that no development or works would be carried out on the land as this was very wide, he referred to works as part of landscaping that would be exempt from permit requirements. No doubt Mr Callander is aware that the Tribunal would not look favourably on anything done on the land that was in contention prior to the matter being heard and determined.

25. Mr Williams indicated to the Tribunal that the applicants were not prepared to give an undertaking as to damages. He sought to put the refusal to give an undertaking as one matter for consideration when considering the balance of convenience but not the sole matter. He contended that the applicants brought the application in the public interest out of concern for the environment.

26. Mr Williams referred the Tribunal to the decision of Cripps CJ of the Land Environment Court, New South Wales in Ross v State Rail Authority of NSW & Ors (1987) 70 LGRA 91 where he held

"where a strong prima facie case has been made out that a significant breach of an environmental law has occurred, the circumstances that an applicant is not prepared to give the usual undertaking as to damages is but a factor to be taken into account when considering the balance of convenience. In this regard, I respectfully adopt the observations of Bowen CJ in Commercial Bank. The court ought inquire from an applicant whether he or she is willing to give an undertaking as to damages. The court should then take into account, on the balance of convenience, the presence or absence of such an undertaking as one of the factors, to be considered in the exercise of its discretion:"

27. The Court in Ross's Case made an interim order without an undertaking in favour of Mrs Ross, owner of land on which the State Rail Authority intended to carry out works without her consent.

28. The Tribunal in its powers under s.123 Victorian Civil and Administrative Tribunal Act 1998 may require an undertaking as to damages and s.120 Planning and Environment Act 1987 must consider whether the applicant should give any undertaking as to damages.

29. It is well accepted that except in exceptional circumstances an undertaking as to damages is a condition precedent to the granting of an interlocutory injunction. It is well considered that if there is no undertaking as to damages and if at the full hearing of an issue it is found against the applicant then the respondent is left with no remedy.

30. This was considered in National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386 (Full Court at 559)

"The usual undertaking as to damages is the price that must be paid by almost every applicant for an interim or interlocutory injunction. An injunction will by its nature require a person to do or abstain from doing some act and so is by its nature an order with a tendency to prejudice the person to whom it is directed. The practice of requiring the undertaking recognises that, the injunction being only interim or interlocutory and so the rights of the parties not having been finally determined, it may at a later stage appear that the applicant should in fairness compensate the party enjoined for the harm he has suffered."

31. There may be a discretion to grant an interim order in very special cases without the requirement to give an undertaking. Is this such a special case?

32. In the present case no land owned by the applicants is in any way affected by anything sought in the interim order. There are no proprietary or contractual rights of the applicants sought to be protected. No harm has been made out to the public to warrant this case being treated as a special case requiring no undertaking as to damages.

"The Tribunal should it is considered take whatever course appeared to carry the lower risk of injustice if the Tribunal should turn out to be wrong": K-Mart Australia Ltd v Stud Park Investments Pty Ltd (unreported, Full Court, 14 October 1994)

33. The Tribunal considers that although there are triable issues it is not clear as to whether there has been any breach of the planning scheme to warrant the granting of an interim enforcement order, nor sufficient evidence of development and works being carried out that will result in irreparable harm that on the balance of convenience would require the imposition of an interim injunction. Nor is this a case that the Tribunal considers so special that the applicants refusal to give an undertaking as to damages should be overlooked.

34. For the above reasons the Tribunal does not consider that it should exercise its discretion in the granting of an interim injunction or interim enforcement order accordingly the Tribunal disallows the applications and will so order.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

King & Others v Colac Otway SC [2000] VCAT 523

At a glance

Court

Decision date

Source

Judgment (59 paragraphs)

King & Others v Colac Otway SC [2000] VCAT 523 (29 January 2000)

Parties

Legislation Cited (2)

Cases Cited (1)