Michael Ryan v Northern Regional Planning Panel

Evidence

1. In support of the October Motion for interlocutory relief, the applicant relies upon the affidavit of Mr Oshlack affirmed 30 October 2019, which records Mr Oshlack's recent observations of conduct at the site and annexes detailed background documentary material. That material includes the Statement of Environmental Effects dated August 2017 ('SEE') prepared by Planners North on behalf of Winten; the plans that accompanied the Development Application; Council's Development Assessment Report dated 27 September 2018 ('Council Assessment') prepared for the Panel as consent authority; the Determination and Statement of Reasons of the Panel dated 17 October 2018; a preliminary Ecological Report prepared for the applicant by David Milledge dated 29 October 2019 ('Milledge Report'); correspondence between the solicitors for Winten and Mr Oshlack; the North Lismore Flood Impact Assessment ('Flood Assessment') prepared by BNT WBN (hydrological consultants) dated August 2017 (annexed to the SEE); correspondence dated 27 November 2015 from the NSW Office of Environment and Heritage ('OEH') to Council; a letter of 31 October 2017 from OEH to Council; a letter from Winten's hydrological consultants to OEH dated 13 December 2017; a letter dated 16 October 2018 from OEH to Council; plans for a Construction Certificate granted on 12 February 2019; and a Civil Engineering Report styled 'Balance Land Report' (annexed to the SEE).
2. The applicant also tendered the Flora and Fauna Assessment prepared by Peter Parker Environmental Consultants Pty Ltd dated 25 July 2018 (prepared for Winten) ('Parker Report'), which became Exhibit A in the proceedings.
3. Mr Oshlack gives details of his observations undertaken on 16, 23 and 29 October 2019 of what he describes as "excavation and filling work" being undertaken on the area of the site within "Precinct 1", and his observations of the "arm of the digger moving along the tree line on top of the plateau in Precinct 2".
4. Relevant to the concern in relation to microbats, the applicant relies significantly upon the Milledge Report. Mr Milledge undertook a survey over three days (15 to 17 October 2019) of microbat species on part of the site described as Precinct 2 of the proposed development. He carried out "opportunistic observations" and used "harp traps" at six locations and an Anabat (ultrasonic) detection unit.
5. Mr Milledge notes that he captured five species of microbats, and using an Anabat, he detected eight species of microbats, three of which are threatened species. Under the heading "Preliminary Conclusions", Mr Milledge opines that the subject area comprises regenerating dry rainforest vegetation which he considers is an important habitat for three threatened species. He states: On a preliminary basis, I consider it likely that application of s.5A (the 7-part Test) of the Environmental Planning and Assessment (EPA) Act 1979 would find a significant effect with respect to at least one of these threatened species, the Eastern Long-eared Bat. This is because the vegetation to be removed appears to be supporting a viable local population of the species, which is dependent on the vegetation structure and attributes for shelter and breeding sites.
6. He concludes under the heading "Potential Impact of Excavation of the Borrow Pit in the Site" that the development will involve the removal of an area of vegetation "indicated ... to be the habitat of three threatened micro-bat species and the threatened White-eared Monarch".
7. Winten reads the affidavit of its solicitor, Vanessa Walsh, affirmed 31 October 2019. Ms Walsh deposes that: 1. Winten has engaged contractors to carry out the works approved by the Construction Certificate, being the installation of wick drains and bulk earthworks; 2. Winten has a development agreement (with the fourth and fifth respondents) and had planned for the first part of Precinct 1 (comprising 46 lots) to be sold by mid-2020, with the rest of Precinct 1 (49 lots) to be registered by mid-2021; 3. any injunction would jeopardise a bank facility which finances the development because the progress of works is considered critical and if the facility is not extended (post November 2019), the bank will require immediate repayment of the facility in full in circumstances where $3.4m has been advanced on an interest only basis; 4. Winten has engaged an earthworks contractor who is carrying out works pursuant to the development consent (and the Construction Certificate) according to an agreement which provides for a fixed fee of $30,000 if works are interrupted; 5. in relation to "indicative construction methodology, costing, and program", works have proceeded on the site in accordance with the Construction Certificate and the program, and since 14 October 2019, works (including the construction of sediment control fencing in Precincts 1 and 2, stripping and stockpiling topsoil, and excavating drainage channels in Precinct 1) have been undertaken; and 6. the estimated cost of works carried out to date is $100,000.

Applicable legal principles

1. The principles governing the grant of interlocutory relief are well-known. The applicant must demonstrate there is a serious question to be tried, such that there is a sufficient likelihood of success to justify the granting of the interlocutory injunction, and that the balance of convenience favours granting the injunction. These principles have been stated on many occasions: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 ('O'Neill') at [19], Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [170], Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [44], and Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 ('Tegra') at [6].

Serious question to be tried

1. In considering the requirements in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] HCA 1 for a "prima facie" case, the following was stated in Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths) at [21-350]: "the plaintiff 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." Put another way, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending trial: O'Neill at [65].

Balance of convenience

1. In Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 at [46], Emmett AJA stated the factors that should be taken into account in determining where the balance of convenience lies as follows: …the prima facie strength of [the applicant's] case, whether the potential damage that [the applicant] is likely to suffer if an order is not made outweighs the potential damage that [the respondents] are likely to suffer if an order is made and whether [the applicant's] undertaking as to damages is adequate.
2. Then it becomes a matter of seeing if, in all the circumstances, the Court should nonetheless exercise its discretion by declining to grant an interlocutory injunction: Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 at [34].
3. In Tegra at [41], Preston CJ of LEC further noted (some citations omitted): 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…
4. The role of relative strength of the case in the consideration of balance of convenience has been considered on a number of occasions since that decision. For example, see Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 at [53], [76].
5. More recently, in SAI Global Property Division Pty Ltd (ACN 089 586 872) v Jones [2018] NSWSC 438 at [105], Slattery J applied the following principles enunciated by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 regarding what must be established to obtain an interlocutory injunction (some citations omitted): ...Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled…Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application… … Apart from this, although normally the Court "does not undertake a preliminary trial, and 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) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559…

Applicant's position

1. In relation to microbats, the applicant points to pars (3) to (7) of the Further Amended Summons. The applicant's present urgent concern springs both from Mr Oshlack's recent observations of the development being undertaken and, more relevantly, the preliminary Milledge Report.
2. The applicant says that, properly understood, Mr Milledge states that it is likely that the application of s 5A (which I have taken to mean the former s 5AA, now s 1.7) (the 7-part test) of the EPA Act would find a significant impact, and submits that a Species Impact Statement is required (and was not available when the Consent was granted).
3. Based upon Mr Milledge's observations and evidence of the proposed works at the "Borrow Pit" area in Precinct 2 (as shown in the Construction Certificate plans of 12 February 2019), the development will result in the removal of vegetation which is habitat for the threatened Little Bent-winged Bat species and other species.
4. Based upon the Milledge Report, the applicant submits that the Court would find that there is a serious question to be tried, that it has a strong case, and that unless the injunction is granted, there will be irreparable damage.
5. The applicant submits that the Court would comfortably conclude, having regard to the Milledge Report, that the case in relation to the invalidity of the Consent (due to a suggested failure of the proponent to carry out a "proper" 7-part test, with the effect that a requisite Species Impact Statement did not accompany the development application) is particularly strong. The applicant contends that the Court should take into account that, effectively, the "site would be destroyed" prior to the hearing if the injunction were not granted.
6. In relation to the balance of convenience, it is submitted that the Court could not place weight upon the evidence of Ms Walsh, primarily because that evidence is hearsay and there is no reason why evidence of the financial concerns and arrangements of Winten could not have been given directly by Greg Smith, Winten's Chief Financial Officer.

Winten's position

1. Winten submits that the Court would keep in mind that the substantive hearing is set down for commencement on 10 February 2020, some 13 weeks away, and the Court would not accept the applicant's submission that the "site would be destroyed" unless an injunction were ordered.
2. Winten submits that the preliminary Milledge Report does not "get close" to the requisite level that would justify the injunctive relief sought.
3. Further, even if Mr Milledge is of the view that it is "likely" that the application of the "7-part test" would disclose a significant effect in relation to threatened species, Winten's experts (the detailed expert ecological material that accompanied the development application that was before the Panel) provided a different view in this regard.
4. Winten points to Mr Milledge's statement "...the vegetation to be removed appears to be supporting a viable local population of the species, which is dependent on the vegetation structure and attributes for shelter and breeding sites", and submits that when the location of Mr Milledge's Anabat readings and harp trap locations are considered, it is clear that they are not within the area of vegetation to be removed.
5. In particular, Winten submits that the locations in which Mr Milledge undertook his testing are not in areas that will be developed "for quite some time", and the project is "only in week two" (as provided in the evidence upon which it relies).
6. Winten further submits that the Council Assessment of 27 September 2018 which was before the Panel, expresses the view that "it is unlikely that the proposal will result in a significant impact potentially occurring on any threatened floral or fauna species". Winten says that this responds to and accepts the Parker Report which contained a "statutory assessment" and concluded that the proposed development would not have a significant effect on threatened species or their habitats, or endanger ecological communities.
7. Winten contends that the Parker Report was tendered in the applicant's case and directs the Court to various analyses, tabular formulations and conclusions therein, with particular reference to the various earlier ecological reports that were referenced by Mr Parker.
8. Winten submits that the conclusions of Mr Parker, which were accepted in the Council Assessment, were matters considered by the Panel for the purpose of its determination on 17 October 2018.
9. In these circumstances, Winten submits that "it is difficult" to understand what relevance any observations made by Mr Milledge on 15 to 17 October 2019 had to the Panel (or Council) in September 2018, the subsequent determination before the Panel, or the grant of Consent in October 2018.
10. Further, Winten submits that the findings of Mr Milledge do not indicate the presence of any bat species on that part of the land currently undergoing development, which Winten submits is the only area for which there is presently a construction certificate.
11. In the above circumstances, Winten submits that there is no serious question to be tried and the balance of convenience clearly favours not granting interlocutory relief in circumstances where the Court would accept the evidence of Ms Walsh regarding Winten's financial concerns and indicative construction methodology, costing and program.

Consideration

1. The Further Amended Summons at par (4) pleads the alleged invalidity of the "development application" by reason that there is likely to be a significant impact "within the meaning of s 5A of the EPA Act on microbats...". The claim for interlocutory relief in relation to microbats relies primarily upon the Milledge Report summarised above.
2. While I accept that Mr Milledge's evidence has been brought on as a matter of some urgency, considering that he undertook his survey work in mid-October, and this urgency would have affected the preparation and form of his evidence, it is clear that his opinions, and in particular his conclusions, are based upon his "preliminary" considerations.
3. Mr Milledge indicates that while he is the process of preparing a detailed report, he has reached a preliminary conclusion that: …all the regenerating dry rainforest vegetation in the site is important habitat...
4. He further states, again on a "preliminary basis", that: …it [is] likely that application of…the 7-part test…would find a significant effect with respect to at least one of these threatened species, the Eastern Long-eared Bat. This is because the vegetation to be removed appears to be supporting a viable local population of the species, which is dependent on the vegetation structure and attributes for shelter and breeding sites.
5. As noted above, the evidence presently before the Court is that the Panel had before it the Parker Report, an extensive ecological assessment which provides detailed consideration of the background of the matter, including specific consideration of microbats. While I note that the particulars to par (4) of the Further Amended Summons raise matters regarding some inadequacy in the Parker Report, it is clear that the Council Assessment, which was before the Panel, references the Parker Report and then provides "it is unlikely that the proposal would result in a significant impact potentially occurring on any threatened flora and fauna species".
6. In light of the preliminary nature of the Milledge Report, and taking into account the fact that he does not make any reference to the Parker Report, the adequacy or otherwise of the surveys and other work undertaken therein, I consider that the Milledge Report and his preliminary opinion (in its present form) is not persuasive, apart from raising the results of his recent investigations.
7. As I indicated during the hearing, the preliminary nature of the Milledge Report is understandable given the urgency in bringing this interlocutory application before the Court, however, the compendious nature of the report, even if fully accepted, is not, on its own, and on a fair reading, indicative of a serious question to be tried. A final report may reflect the final considered opinion of Mr Milledge and may include some commentary on the earlier reporting and surveys, however, at present, the material is not sufficiently persuasive so as to enable a view to be formed that there is a serious question to be tried.
8. Despite the above, and assuming that there is a serious question to be tried, on the assumption that Mr Milledge's present material could be elevated to be indicative of some inadequacy of the earlier material prepared to support the development application and that this may have required a Species Impact Statement (an assumption I am not prepared to make on the material before me), as stated above, I do not consider that the present material of Mr Milledge is persuasive.
9. Even if I found that there was a serious question to be tried, the evidence regarding the balance of convenience favours not granting interlocutory relief. This is because, despite the applicant's submissions, I accept the evidence of Ms Walsh as summarised above. Further, in light of figure 1 in the Milledge Report and the approved Construction Certificate plans (Annexure N to Mr Oshlack's affidavit), it appears that the locations where Mr Milledge undertook Anabat testing and where the harp trap was located (in particular Anabat location A1 and harp trap location HT1) are slightly to the south of the area likely to be cleared.
10. Accordingly, I am of the view that Mr Milledge's preliminary observations and conclusions are not sufficient on their own to persuade me that the applicant has made out his case for interlocutory relief in relation to concerns regarding microbats. The findings of Mr Milledge do not precisely indicate the presence of relevant bat species on that part of the land currently undergoing development, which is the area in relation to which the proponent currently holds a construction certificate.

Applicant's position

1. In relation to flood risk, the applicant directs the Court to par (14) of the Further Amended Summons and the particulars thereto. The material relied upon by the applicant in relation to flood risk comprises the Flood Assessment; correspondence from the OEH dated 27 November 2015 and 31 October 2017; correspondence from Winten's flooding experts of 13 December 2017; and a further letter dated 16 October 2018 from the OEH to Council.
2. In light of that correspondence, the applicant submits that concerns relating to flood risk have been consistently raised over a number of years in relation to the earlier planning proposal (that led to a rezoning which facilitated the current development), and it remains a concern that the proposed sub-division has a single access road (from Dunoon Road in the southeast corner of the development area) which, due to the low ground level in the area, would experience flooding in both a 100-year event as well as in a 20-year event if the proposal went ahead, raising safety and other concerns.
3. The applicant submits that in the absence of any material change in the plans which accompanied the development application, the concerns expressed in the correspondence from the OEH in relation the location of the Neighbourhood Centre (in the residential sub-division) as well as concerns in relation to flooding of the access road to the site had not been addressed. Consequently, as pleaded in par (14) of the Further Amended Summons, the applicant says that the Panel failed to discharge "its duty to be satisfied as to flood aspects... pursuant to clause 6.3(3) of the Lismore Local Environmental Plan 2012…".
4. The applicant submits that in relation to the referenced material, the Court would accept that there is a serious question to be tried, that there are strong prospects of success, and it is likely that if the Court does not grant the injunction to stop the earthworks, it will not be possible to reinstate the site.
5. The applicant further submits that he is prepared to offer an undertaking as to damages.

Winten's position

1. Winten directs the Court to the Flood Assessment (which was attached to the SEE) prepared by BNT WBN (hydrological consultants) dated August 2017 which concluded that: detailed hydraulic modelling for the regional flooding has been performed and proposed changes in the site configuration are not predicted to cause any adverse flooding impacts on adjacent lands.
2. Winten also directs the Court to cl 6.3 ("Flood planning") in the Lismore Local Environmental Plan 2012 ('LEP') which provides in subcl (3) that development consent "must not be granted" to development on land unless the consent authority is satisfied that the development, inter alia, is compatible with the flood hazard of the land; is not likely to significantly adversely affect flood behaviour; incorporates appropriate measures to manage risk; is not likely to significantly adversely affect the environment; and is not likely to result in unsustainable social and economic costs to the community.
3. In the circumstances, the Council Assessment, which was before the consent authority, considered that cl 6.3 of the LEP had been "addressed comprehensively" in the Flood Assessment. Again, Winten submits that this assessment was considered by the Panel in granting the Consent.
4. Accordingly, Winten submits that the applicant is unlikely at hearing to make good the allegation (as pleaded in the Further Amended Summons at par (14)) that the Panel "failed to discharge its duty to be satisfied as to the flood planning aspects of the development pursuant to cl 6.3(3)". Winten further submits that the manner in which the applicant seeks to raise this matter amounts to "merit" review, not "judicial" review.
5. As such, Winten says that the Court would not be satisfied that the applicant's case in relation to flood risk has sufficiently strong prospects of success so as to warrant restraining Winten in continuing the development that it has commenced. Further, in assessing the balance of convenience, Winten submits that the arguments for refusing relief "become even stronger", and refers to the matters in the affidavit of Ms Walsh.
6. In relation to both aspects of the applicant's claim, while the applicant has proffered an undertaking as to damages, Winten submits that given that it is accepted that the applicant is of limited means, the undertaking proffered may be illusory, and the Court, apart from the other matters that mitigate against granting interlocutory relief, would have sufficient concern in relation to the capacity of the applicant, a matter that would otherwise require further evidence.

Consideration

1. My findings in relation to this second aspect of the applicant's claim may be shortly stated. First, the only evidence relied upon is the Flood Assessment undertaken on behalf of Winten (which was incorporated into the Assessment Report before the Panel), a number of letters from the OEH in relation to flood impact, and a response from the hydrological engineer retained by Winten as noted above.
2. It is clear that one of the OEH letters relates to the consideration of an earlier planning proposal that apparently led to the rezoning of the subject land prior to the development application. Although the OEH on that occasion, and subsequent to the lodgement of the development application, provided further information to the assessment authorities, and while there was a response from Winten's hydrologist noting that there may still be a concern in relation to inundation of a local road, being the sole access to the development, I do not find this material to be determinative.
3. Further, the material indicates that Council (and it follows, the Panel) had before it detailed expert material in relation to likely flooding. It is also clear that there is material suggesting that Council formed the requisite state of satisfaction pursuant to cl 6.3 of the LEP. The Assessment Report before the Panel specifically recorded that in relation to "flood planning", and in particular cl 6.3 of the LEP, the "…issue has been addressed comprehensively in the Flood Planning Assessment provided with the application documents" and, further, that "Council is satisfied that the development meets the requirements of subcl 6.3(3)."
4. In the above circumstances, and while not expressing any view in relation to what evidence may be forthcoming at the substantive hearing in February next year, I do not consider that reliance upon the correspondence referred to above (and/or any other material presently before the Court) enables me to conclude that there is a serious question to be tried. Despite this, even if I was of the view that there was a serious question to be tried in relation to this aspect of the matter, for the reasons given above, I find that the balance of convenience favours Winten.
5. In taking into account the above matters, I am conscious that the hearing of this matter has been set down and will progress in 13 weeks' time.
6. For the reasons stated above, I dismiss the October Motion. As I have not heard argument in relation to costs, I reserve costs.

Orders

1. The orders of the Court are: 1. The applicant's notice of motion filed 30 October 2019 for interlocutory relief is dismissed. 2. Costs 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: 07 November 2019