Love v Thwaites and Ors

5. The matter now comes before me as the plaintiff's application for interlocutory injunction to restrain demolition or disturbance of Clonnard until the hearing and determination of the proceeding. Dr Pannam, one of Her Majesty's counsel, appears with Mr Carmichael for the plaintiff, and Mr Morris of Her Majesty's counsel appears for the Roads Corporation. Mr Tweedie appears for the first and second defendants.

8. I have been favoured with a large amount of documentary material, most of which I have had the opportunity of reading in advance of the hearing, and also with detailed written and oral submissions from counsel. They cover a broad range of issues and identify a volume of authority which is said to bear upon the ultimate determination of the issues. But the question that I have to decide for the purposes of this application is relatively simple. Is the strength of the plaintiff's case as it stands, and the balance of convenience, such that I should any longer restrain the Roads Corporation from disturbing Clonnard?

11. I turn first to the strength of the plaintiff's case and, to begin with, to something of the facts and the evidence additional to the matters which I mentioned in my reasons for judgment when the matter was last before me.

14. Relevantly, the facts begin in May 1997, with the appointment by the Minister of the First Advisory Committee for the purposes of s 5(1) of the Land (Acquisition and Compensation) Act 1986. Amongst other things which that committee had before it were letters of the plaintiff to the Roads Corporation dated 14 February 1997 and 27 February 1997 as to the worth of the rock resource on the plaintiff's land. By reason of those letters the Roads Corporation and the First Advisory Committee knew that the resource was of significant worth, both to the plaintiff and to society generally, as a ready and competitive source of rock for quarrying.

17. It also appears that there was evidence before the Committee, or if there were not, it appears that it should have been known to the Committee, that the owner of the land immediately to the west of the plaintiff's land had some time before entered into an agreement with the Whittlesea Council. The effect of the agreement was that in consideration of the Council agreeing to vary of the zoning of the land from rural to industrial development, the owner agreed that if any of the land were later to be acquired compulsorily, he would seek compensation at the lesser value attributable to its prior rural zoning and not at the higher value which might otherwise be accorded to its rezoned industrial development status .

20. Following submissions, the First Advisory Committee produced a report in October 1999 in which it recommended Option 5 as the route for the proposed Hume Freeway extension. That route ran along a 150m wide strip of the land which was the subject of the agreement with the Whittlesea Council immediately to the west of the plaintiff's land. The recommendation appears to have been based upon the view that it was desirable to preserve the potential for exploitation of the plaintiff's land as a rock resource. Hence the freeway should not be constructed on the plaintiff's land.

23. The committee observed that the potential for exploitation was limited by the need to provide an adequate buffer area within the plaintiff's land, and that it would be so whether or not the buffer were between the quarry and a freeway or between the quarry and an adjoining industrial commercial development. But the committee concluded that, having considered all possible variations of Options 2 and 5 in the area north of Cooper Street, the route which was selected best met the objectives of integrating transport and land use planning, including the objectives of state planning policy with respect to extractive industry and the local planning policy objectives set out in the Whittlesea MSS and in the Cooper Street precinct strategy.

26. The Minister nevertheless rejected the Committee's recommendation and on or about 25 November 1999 the Minister refused the plaintiff a permit under the Extractive Industries Development Act to quarry that part of the plaintiff's land immediately to the east of the route defined in Option 5. Shortly afterwards, the Minister set up a working party within the department to formulate other options for the route of the proposed freeway.

29. In July 2000, the working party prepared a second planning assessment report, in which it recommended three new options: X, Y and Z, and in which it made specific mention of the point of intersection between the proposed freeway and Cooper Street. It concluded that the alignment of the proposed freeway should be moved east from the line of Option5 to a new line, described as Option Y, along the plaintiff's land.

32. The working party's reasoning appears to have been that the plaintiff's land could no longer be regarded as a potential quarry site, because the plaintiff's application for an extractive industries permit had by then been refused, and accordingly the route of the freeway should be moved east thereby freeing up more of the land to the west of the plaintiff's land for development as an industrial park. It was also considered that Option Y had the advantage of avoiding damage to the Craigieburn East grasslands as well as offering significant cost savings and traffic benefits.

35. On 21 August 2000, the Minister appointed the Second Advisory Committee for the purposes of sub-section (5)(1) of the Act, and in the months which followed, the working party received 1930 submissions from persons claiming to be interested in the process. Those submissions included a submission from the Roads Corporation that it may be possible to make some minor route changes within Option Y to avoid destruction of historically significant properties or alternatively to preserve the historical significance of them by archaeological supervision of their destruction.

38. On September 2002 the Second Advisory Committee released its report recommending Option Y, except for a section north of Craigieburn Road which it suggested be moved to the east to minimise intrusion on to the grasslands and the Curly Sedge Creek.

41. In February of 2001 the Minister considered the Second Advisory Committee report and decided that Option Y ought be implemented and the planning scheme amended accordingly. In the same month the Minister issued a Press release announcing the route of Option Y and later that month, the Minister or his department released a pamphlet concerning the decision.

44. On 4 September 2001, the Planning Scheme Amendment No C23 showing the adoption of Route Y was gazetted in Government Gazette No 146 and on 17 September 2001 details of the amendment, including details of Option Y, were released on the Department of Planning and Industry's web-site.

47. On 21 November 2002, Proposed Amendment No C44 for an interchange between the Craigieburn bypass and O'Hearns Road, in the vicinity of Clonnard was raised and an explanatory representation of it was placed on exhibition and on 24 December 2002 the plaintiff lodged objection to it. Panel hearings in relation to proposed amendment NoC44 were conducted on 17 and 18 this month, but the panel is yet to conclude its deliberations.

50. In its Statement of Claim, the plaintiff seeks a declaration that the decision to effect Amendment C23 to the Whittlesea Planning Scheme is null and void; a declaration that a decision of the second defendant to approve the compulsory acquisition of the plaintiff's land by the Roads Corporation for the purposes of the construction of the freeway is null and void; and a declaration or perhaps an order that the compulsory acquisition of the plaintiff's land be set aside, on a number of grounds.

53. This morning Dr Pannam took me in considerable detail through the evidence which is relied upon by the plaintiff in support of those claims and by reference to that evidence he has identified as the serious questions to be tried for the purposes of this application, the following:

* That the decision of the Minister to effect Amendment C23 or the decision of the Minister or of the third defendant to acquire the plaintiff's land was so unreasonable that no decision-maker could properly have come to it.

* That the decision or decisions left out of account or gave manifestly insufficient weight to the fact that the 150 metre-wide strip of land immediately to the west of the plaintiff's land was available to be used for the construction of the freeway (by reason, amongst other things, of the arrangement into which the owner of that land had entered at the time of the re-zoning of the land for its acquisition at rural value).

* That the decision left out of account or again gave manifestly insufficient weight to the consideration that if the 150 metre strip of land were used instead of the plaintiff's land, it would leave the plaintiff's land unaffected and thus available as a valuable quarry resource.

* That it was plain from the Second Advisory Committee's report that in deciding to prefer the interests of commercial development on the land to the west of the plaintiff's land to quarrying upon the plaintiff's land, the committee erroneously assumed that the decision of the Minister to refuse the plaintiff an extractive industries permit had the effect of forever sterilising the quarrying potential of the land.

* That if the Committee had ignored the refusal of the permit, as they should have done, and decided the issue on the basis only of proper considerations, it was overwhelmingly probable, or at least certainly likely, that the freeway would have been constructed on the land to the west of the plaintiff's land and that an extractive industries permit would then have been granted to the plaintiff (because, after the motorway had been constructed, the land immediately to its east would not be of much use for anything else).

* That the Committee had erred in preferring local planning policy (which it was said is opposed to quarrying) to State development policy (which it was said requires that paramountcy be given to the preservation and exploitation of rock resources).

* That the decision was vitiated by the failure of the Committee to provide for minor route variations in Option Y sufficient to save Clonnard and other structures of like historical significance.

63. In the written submissions which were filed in advance of the hearing, it was also contended that the decisions to implement C23 and compulsorily to acquire the plaintiff's land were rendered void or voidable by reason of the failure of the decision makers to afford the plaintiff procedural fairness at the time at which the decisions were made (although that contention has not been pursued today).

66. In opposing the application for injunction, Mr Morris began by observing that the effect of sub-s (5)(1) of the Land Acquisition and Compensation Act is to create a regime in Victoria under which land is not to be acquired compulsorily for road construction purposes unless and until the land has been reserved under a planning instrument, and that it is the essence of the regime that considerations of the kind to which Dr Pannam referred, such as the relative weighting of the worth of the rock resource and the commercial development potential of the land to the west of the plaintiff's land, are to be taken into account by the authority that considers the proposal for reservation and balanced by them against each other and a host of other competing considerations, including State and local planning policies and environmental impact.

69. Mr Morris submitted that when one sees that that is exactly what the Second Advisory Committee did, it is just not arguable that the relative weighting which the Committee gave to industrial development as opposed to the quarrying, and the relative weight which they gave to local development policy as opposed to some other policy which might be thought to apply more widely throughout the State, in some way vitiated their decision. And once that point was reached, Mr Morris submitted, the contention that the subsequent decisions (to implement C23 and compulsorily to acquire the plaintiff's land under s 42 of the Transport Act) were void was also bound to fail.

72. Further, it was submitted, even if the third defendant were now to attempt to adopt a different route to that authorised by C23, unless there were consent on the part of the owner of the land which was to be used in place of the plaintiff's land, there would have to be yet another planning process gone through under the Planning and Environment Act and the Lands Acquisition Act before the land could be acquired for the purposes of road construction and there could be no guarantee that it would not result in exactly the same conclusion of the Second Advisory Committee.

75. It is I think unnecessary and undesirable that I say too much about the strength of the plaintiff's case or about the submissions advanced on behalf of the defendants. Suffice it to say for the present purposes that despite defendants' contention that the plaintiff's case is hopeless, I am persuaded by Dr Pannam's submissions that there is a serious question to be tried: as to whether the decision to effect amendment C23, and the consequential decision under s 42 of the Transport Act 1983 compulsorily to acquire the plaintiff's land, are vitiated in the respects identified by Dr Pannam.

78. That is not to say, however, that I think that the case is likely to succeed at trial. Indeed as at present advised I am inclined to doubt it. It is simply to say that upon the low standard which I regard as applicable to the establishment of a serious question to be tried, I regard one as having been made out.

81. I turn therefore to the balance of convenience, which is perhaps the more significant consideration for present purposes.

84. In a beguilingly simple submission, Dr Pannam argued that whatever compensation might or might not subsequently be recovered by the plaintiff, if the land is compulsorily acquired the plaintiff will suffer irreparable damage. There is a house upon it, he said, which has special significance for the plaintiff (because of its history and also because of the commercial and fiscal advantages which it confers upon him), and that such land has about it a unique quality which monetary compensation cannot adequately allow for.

87. Further, Dr Pannam submitted, inasmuch as the First Advisory Committee accepted and the Second Advisory Committee were told that it may be possible by minor route deviations to save structures such as Clonnard, until and unless it is demonstrated by the defendants that it is necessary to destroy Clonnard in order to carry out construction of the freeway along the route of Option Y, there is no compelling reason why they should not be enjoined from permitting its destruction until the hearing of the action.

90. There is obviously something in what Dr Pannam says. Land does have about it a quality which cannot always be measured in terms of money alone. And money cannot always and frequently does not satisfy the sense of loss and grievance which owners experience when their land is taken from them against their will. But all that having been said, it appears to me that the plaintiff's loss and sense of grievance in this case is really no different to the loss and sense of grievance felt by most owners of land which is compulsorily acquired. They may not wish the land to be acquired. But they are obliged to content themselves with the compensation for which the Act provides. And in monetary terms, I do not see any reason why the plaintiff's loss should not result in adequate compensation under the formulae laid down in the Act.

93. I add that it also appears from the material filed in support of the application that the historical value of Clonnard is not great. The Heritage Council takes the view that such historical quality as it represents can sufficiently be preserved by archaeological controls and documentation at the time of demolition.

96. Over and above those matters there has been considerable delay on the part of the plaintiff in taking action to restrain the implementation of amendment C23 and the compulsory acquisition of the land under s 42 of the Transport Act. Amendment C23 showing Route Y appeared in the Government Gazette as long ago as 21 November 2001 and yet it was only in the second half of this month that plaintiff instituted this proceeding attacking the amendment and the acquisition of his land.

99. It is true, as Dr Pannam and Mr Carmichael both pointed out, that in the months which followed December 2001 considerable correspondence passed between the plaintiff and his representatives and the ministries which are involved, and at all points the plaintiff has made plain in correspondence that he is vehemently opposed to C23 and to the compulsory acquisition of his land. But it is one thing to complain and it is another to do something about it.

102. If a plaintiff is aggrieved by a reservation such as C23 or an order for compulsory acquisition, he or she must move with alacrity if they are to stand much chance of obtaining interlocutory injunctive relief to restrain its implementation. It is not enough in a case like this, if it is ever enough, to stand and do nothing but complain and then expect at the eleventh hour to succeed in obtaining the extraordinary remedy of injunction to restrain activities directed to the construction of a motorway on a reserve expressly set aside for the purpose in accordance with the Act.

105. That is not to say that delay of itself is sufficient reason in this case, if it is ever sufficient reason, to refuse interlocutory injunction. But it is to say that where delay occurs it is often the case, and here by reason of the delay which has occurred it is the case, that much has happened by way of planning, development, acquisition and the letting of contracts which would not have happened if application had been made with alacrity and injunction had gone. I draw the inference that matters have now so far progressed that if the construction of the freeway were in any way significantly restrained, it would have the potential to cause and in all probability would cause considerable damage to the defendants.

108. It is true, as Dr Pannam points out, that all that is sought to be enjoined is disturbance of Clonnard, and the evidence which has been put on by the defendants in opposition to the application rises no higher than to say that the contractor, Abigroup, who has been engaged to design and construct the freeway, might be disturbed in the works which are being undertaken. But I think that Mr Morris is correct in the contention that when one looks at so much of the contract as is in evidence, and sees that it is a design and construct project which entails penalties for delay, it is to be inferred that any sort of restriction upon the works that the contractor might undertake upon Clonnard is likely to lead to differences about the application of the penalty provisions and the potential for significant damage to the defendants.

111. Towards the end of Dr Pannam's submissions and again towards the end of Mr Carmichael's submissions in reply, the possibility of limiting the scope of the injunctive relief was mentioned and to some extent dealt with. A formulation of a more limited injunction is set out in the plaintiff's summary of submissions and it was said that all that the plaintiff really seeks at this point is an order which preserves from demolition so much of the Clonnard homestead and complex as is possible without impeding the construction of the freeway.

114. Despite the delays which have occurred, and whatever I might think about the strength of the plaintiff's case, I would be inclined to make such an order if it could be drawn sufficiently precisely to enable those to whom it is addressed to know with certainty what they are restrained from doing, and if I were satisfied that it would not cause delay or damage or claims for compensation under the penalty provisions of the Abigroup contract.

117. But as matters stand, the formulation in paragraph 21 of the submission is not sufficiently precise. The question of what would be possible without "impeding the construction of the freeway" is problematic to say the least. One has only to recall that the ex parte application in this matter took three hours, and that thus far we have taken close to another five to deal with the matter on an inter partes basis, to conclude that there is room for argument at almost every point about things of that kind.

120. If it is later demonstrated by more precise drafting and cogent evidence that certainty and the avoidance of damage are possible, I think that I would be prepared to make the order then sought. But at this point, on the application which is before me, I am not disposed to make an order even in the limited terms set out in paragraph 21 of the submissions.

123. For those reasons, I refuse the plaintiff's application for interlocutory injunction.