Waverley Council v Infrastructure NSW [2019] NSWLEC 20
Local Democracy Matters Incorporated
Source
Original judgment source is linked above.
Catchwords
Waverley Council v Infrastructure NSW [2019] NSWLEC 20
Local Democracy Matters Incorporated
Judgment (8 paragraphs)
[1]
SOLICITORS:
Stringybark Legal (Applicant)
King & Wood Mallesons (First Respondent)
Norton Rose Fullbright (Second Respondent)
Department of Planning (Third Respondent)
Herbert Smith Freehills (Fourth Respondent)
File Number(s): 19/39988
[2]
Suspension of final order pending an appeal
I delivered final judgment in Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW [2019] NSWLEC 20 (Local Democracy Matters Incorporated v Infrastructure NSW) on 6 March 2019 dismissing the summons commencing judicial review proceedings filed by the Applicant Local Democracy Matters Incorporated (LDM). At issue in the proceedings was the legal validity of the grant of development consent by the Minister for Planning (the Third Respondent) to the Sydney Football Stadium (SFS) concept proposal and Stage 1 works on 6 December 2018.
LDM was given leave to file in court yesterday a notice of motion dated 7 March 2019 which after some toing and froing was crystallised as seeking firstly a suspension under s 59 of the Land and Environment Court Act 1979 of final Order 1 made in Local Democracy Matters Incorporated v Infrastructure NSW dismissing the summons and secondly an order restraining further hard demolition work until 5 pm Monday 11 March 2019. A notice of appeal was filed by LDM's solicitor in the course of the afternoon on 6 March 2019. Argument on the notice of motion was heard until approximately 4.30 pm on 7 March 2019. Judgment was reserved until 9.15 am today.
The contract between Infrastructure NSW (INSW) (the First Respondent) and Lendlease Building Pty Ltd (Lendlease) (the Fourth Respondent) was entered into on 7 December 2018 and some demolition work of soft stripping has taken place. The summons commencing proceedings was filed on 6 February 2019. The expedited hearing was heard on 20-22 February 2019. An interlocutory injunction preventing hard demolition works was made late on 22 February 2019 until 4 pm on Monday 25 February 2019 when more complete argument was heard. An interlocutory injunction preventing hard demolition by Lendlease until 8 March 2019 or further court order was made on 26 February 2019, see Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18 (Local Democracy Matters Incorporated (Injunction judgment)).
Mr Ryan solicitor for LDM affirmed an affidavit on 7 March 2019 filed in support of the notice of motion. Mr Ryan stated that he was instructed that LDM convened a meeting on the evening of 6 March 2019 to consider the judgment of Local Democracy Matters Incorporated v Infrastructure NSW. LDM instructed Mr Ryan to appeal the decision to the Court of Appeal and to make every effort to have the appeal heard expeditiously. Mr Ryan stated that he was not instructed to give any undertaking as to damages. He stated that the interlocutory judgment Local Democracy Matters Incorporated (Injunction judgment) at [10] outlined the evidence of imminent demolition of the SFS. That evidence included a short-range program dated 23 February 2019 which stated that separation of the entire roof at expansion joints would occur between 2 and 5 March 2019. A further mid-range program dated January 2019 stated that hard demolition with respect to the south roof and preparation for eastern roof lowering would occur between 25 February and 3 March 2019.
Section 59 of the Land and Environment Court Act provides:
59 Suspension of operation of order etc
(1) Where an appeal is made to the Supreme Court under this Division, either the Court or the Supreme Court may suspend the operation of any relevant order or decision until the Supreme Court makes its decision.
(2) Where an appeal is made to the Court under this Division, the Court may suspend the operation of any relevant order or decision until the Court makes its decision.
[3]
LDM
LDM relied largely on Local Democracy Matters Incorporated (Injunction judgment), particularly at [32], [34] and [36]. In [32] I stated that I was unable to conclude at that point in time that a claim by Lendlease was inevitable and payable under the provisions of the contract with INSW. At [34] I identified factors in Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806 which identify aspects of the public interest in enforcing planning law. At [36] I identified that the subject matter of the proceedings is the stadium as the subject matter of the development consent under challenge. Nothing has changed between the interlocutory judgment and now. A very short period of time restraining hard demolition is sought.
[4]
INSW
INSW (the First Respondent) opposed a suspension and further restraining order. The relevant test is identified in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (Alexander). There has been a substantial change since the second interlocutory injunction was issued. Final judgment has been delivered which has found that there was no breach of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Minister for Planning when he granted development consent. There is potential liability for INSW in a claim under the contract with Lendlease of about $46,000 per day which continues to accumulate the longer work is delayed. No undertaking as to damages has been offered. The balance of convenience favours allowing INSW to act on the lawful consent that it holds.
[5]
SCG Trust
The Second Respondent the Sydney Cricket and Sports Ground Trust (SCG Trust) also opposes a suspension and further restraining order. It filed various affidavits in the substantive proceedings which identified the impact on ground users at the SFS if there is delay in the completion of the new stadium project and referred to these in relation to the notice of motion as follows.
1. Mr Townsend chief executive officer of Sydney Football Club Pty Ltd swore an affidavit dated 15 February 2019;
2. Ms Kelly strategy and projects general manager of the SCG Trust swore an affidavit dated 15 February 2019;
3. Mr Kelly chief executive officer of the Eastern Suburbs District Rugby League Football Club Limited swore an affidavit dated 14 February 2019;
4. Mr Falvo chief executive officer of the Football Federation Australia Limited swore an affidavit dated 15 February 2019;
5. Mr Weeks chief operation officer for National Rugby League Limited swore an affidavit on 15 February 2019;
6. Ms Castle chief executive officer of Rugby Australia Ltd swore an affidavit dated 15 February 2019; and
7. Mr Harley chief executive officer of Sydney Swans Limited swore an affidavit dated 15 February 2019.
The above deponents described how any delay in the completion of the redevelopment of the SFS would disadvantage their associated companies. Any delay in the above clubs and associations being able to use the SFS after redevelopment would inter alia cause revenue loss, increase overheads, damage reputation and cause practical difficulties for players, staff and operations. According to the deponents this would result for example from having to use alternative venues to the SFS of reduced capacity and lower quality for a longer period of time.
The subject matter of the proceedings, if it is the stadium, will not disappear if no injunction is granted. The work program does not suggest the stadium will disappear by 5 pm Monday 11 March 2019. The successful parties should have the benefit of the judgment in their favour.
Lendlease has filed a submitting appearance in the proceedings and did not appear. The Minister for Planning did not make any submissions.
[6]
Finding
There is no dispute that under s 59 of the Land and Environment Court Act, given that an appeal has now been filed in the Court of Appeal, the Court has power to stay its final order and then make an order restraining work being done by any party. The applicable principles are identified in Alexander where the Court of Appeal stated at 694 that it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in its favour. The court further noted at 694 that the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties. The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears. In the exercise of its discretion, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it. The court observed at 695 that:
although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case.
I was also referred by LDM to Maharaja's Palace Pty Ltd v Raj and Jai Construction Pty Ltd [2018] NSWCA 191 at [9] in which Leeming JA referred to Basten JA in Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd (as Trustee of the Harry Triguboff Foundation) [2017] NSWCA 331 at [15]-[17] which set out relevant matters to consider such as the hardship and inconvenience caused to parties, whether the subject matter will be destroyed, the period of relief sought and refers to Alexander in relation to whether there is an arguable case.
LDM essentially submitted that the circumstances in seeking a stay of a final order and an injunction restraining work for a very short period now are little changed from when the second injunction with effect until 8 March 2019 or further court order was issued on 26 February 2019. These submissions do not appear to recognise that I have delivered a final judgment. Importantly, my decision to grant the interlocutory injunction was based on finding that there was a serious question to be tried. That is no longer the case and that represents an important change of circumstance. That a beneficiary of a judgment should be able to rely on it is an important consideration.
The identification of reasonably arguable grounds of appeal is relevant. While I have been provided with a notice of appeal, this largely but for one possible matter repeats the case I heard and in which I have given final judgment. Whether the grounds of appeal are arguable is hard to judge in the absence of any submissions identifying argument. That is a matter which can be more satisfactorily considered by the Court of Appeal to which I understand an urgent application for consideration is to be made, better informed of the nature of the appeal grounds.
A key consideration here is the statement in Alexander of the need to fairly adjust the interests of the parties and the hardship and inconvenience caused to the successful parties. The possibility exists of a claim under the contract between INSW and Lendlease of $46,000 per day, accepting that evidence is disputed. I held in Local Democracy Matters Incorporated (Injunction judgment) that in the limited time available to me to consider the evidence a claim by Lendlease arising from delay was not certain. Nor can it be ruled out. While significant financial burden will not be incurred by INSW in the context of the overall cost of the SFS redevelopment project if a claim is ultimately made by Lendlease, the amount of any potential claim will accumulate the longer hard demolition work is restrained.
The absence of an undertaking to pay damages does require consideration in this circumstance. I accepted in Local Democracy Matters Incorporated (Injunction judgment) these proceedings have been commenced relying on open standing provisions in the EPA Act in relation to enforcement of the Act. The absence of an undertaking to pay damages was not a bar in the earlier judgment to making a restraining order in the circumstances that then applied. The situation is quite different given my final judgment has now been delivered. There are numerous cases where orders have been crafted by courts in the event of a stay or suspension of final orders to maintain the status quo where there is some accommodation of the respondents' interests through financial means but none has been offered by the unsuccessful applicant in this case.
In relation to the evidence of the SCG Trust I also accept that the greater the delay of the SFS development the greater the potential for further disruption to the entities who use that area.
Reference to the work program is made in Mr Ryan's affidavit summarised above in [4]. I further agree with the submissions of the SCG Trust that the subject matter of the proceedings if characterised as the stadium building will not disappear before 5 pm 11 March 2019.
The short period sought on this occasion weighs against a suspension of the final Order 1 and restraining order being made. Balancing these various factors I do not exercise my discretion to stay final Order 1 or make an order restraining Lendlease from undertaking further work in relation to the stadium development consent. I understand that a further application for a suspension and restraining order can also be made in the Court of Appeal.
[7]
Orders
The Court orders that:
1. The Applicant LDM's notice of motion dated 7 March 2019 is dismissed;
2. Costs of the notice of motion dated 7 March 2019 are reserved;
3. Costs reserved in the substantive proceedings and notice of motion dated 7 March 2019 is listed for mention at 10 am on 15 March 2019.
[8]
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Decision last updated: 11 March 2019