Parks and Playground Movement Inc v Newcastle City Council

APPLICANT: Mr C Fraser, barrister SOLICITORS Hunter Valley Law Centre LEGAL REPRESENTATIVES: RESPONDENT: Mr A Galasso SC SOLICITORS Sparke Helmore Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PARKS AND PLAYGROUNDS MOVEMENT INC v NEWCASTLE CITY COUNCIL

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a motion for an urgent interlocutory injunction by Parks and Playgrounds Movement Inc against Newcastle City Council. 2 In the 1930's 14 Hill's fig trees were planted along the sides of Laman Street, Cooks Hill, Newcastle, between Daly and Dawn Streets. 3 On 17 August 2010 the council resolved to remove the trees as soon as possible and replace them with a central line of Hill's figs as soon as suitable trees could be provided.

4 When the council passed the resolution, it had before it an arborist's report in which the view was expressed that the trees had defective root plates and had a history of ongoing root severage and damage. It was said that the trees begin to fail when around 70 years old and that it could not be stated with any degree of precision how much time was remaining for the trees because there were too many unknowns. It was noted that the first of the whole tree failures occurred in 2004 and that there was an increase in the incidence of failures in 2007. It was said that removal and replacement of the trees as a group would secure the best long term outcome. A council report that was before the council when it passed the resolution stated that the results of an independent arborist's assessment indicated that the trees posed a significant risk to public safety in that the council must implement risk abatement strategies. At the hearing before me the applicant has tendered an arborist's report which contests the report that was before the council.

5 On 10 September 2010 a person associated with the applicant requested the Minister for Planning to place an interim heritage order over the fig trees. On 15 September 2010 the Director-General of the Department of Planning replied advising that the Department was considering the request before providing a recommendation to the Minister, noting that the Department was aware of the depth of feelings within sections of the local community about the issue, and indicating that the Department therefore would consider the request in a thorough and timely manner.

6 The effect of an interim heritage order is that a person must not damage or destroy a tree on land to which the order applies except in pursuance of an approval granted by the prescribed approval body: s 57 Heritage Act 1977.

7 Following the council resolution, persons associated with the applicant engaged in correspondence with the council in which they challenged the validity of the council's decision. In the correspondence, the council indicated that its decision was pursuant to the power in s 98(2) of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) and the power in s 88 of the Roads Act 1993. Later in the correspondence the council limited its reliance to the latter. However, at the urgent hearing before me today the council relies on both.

8 Today the applicant filed a summons in this Court seeking an order restraining the council from removing or from lopping the canopies of the trees. The matter has come before me as the duty judge to hear the applicant's urgent oral motion for an interlocutory injunction restraining the council from removing or lopping the trees until, as I understand it, the matter can be heard on a final and urgent basis.

9 The council proposes to close the street next Monday (today being the preceding Friday) and to commence removing the trees the following day (Tuesday). Thus, the question of an interlocutory injunction could hardly be more urgent. Therefore I have no real choice but to decide the motion immediately.

10 In order to obtain an interlocutory injunction the applicant must establish that there is a serious question to be tried and that the balance of convenience favours granting an interlocutory injunction.

11 Clause 98(2) of ISEPP provides: " 98 Development other than road facilities on public roads … (2) Development for any purpose may be carried out by a public authority without consent on a public road that is unzoned land."

12 The words "without consent" exclude the development consent provisions in Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act). The removal of the trees is an "activity" as defined in s 110 and thus Part 5 applies. It is relevant to note the following provisions of ss 111 and 112 within Part 5 on which the applicant places reliance: " 111 Duty to consider environmental impact

(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. …

112 Decision of determining authority in relation to certain activities

(1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) of threatened species, populations or ecological communities, or their habitats, unless: (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity: (i) prepared in the prescribed form and manner by or on behalf of the proponent, and (ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner." 13 Section 88 of the Roads Act 1993 provides: " 88 Tree felling

A roads authority may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out road work or removing a traffic hazard." 14 The applicant submits that Part 5 of the EPA Act also applies to the power in s 88, but that is in dispute before me. SERIOUS QUESTION TO BE TRIED 15 The applicant submits that there is a serious question to be tried that the council's decision to remove the trees was invalid. 16 First, the applicant says, the council did not receive or consider an environmental impact statement (EIS) as required by s 112(1)(a). The council submits that that provision is not enlivened because the removal of the trees is not "likely to affect the environment" which is a necessary pre-condition to the requirement for an EIS.

17 "Environment" includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings: s 4. Having regard to the breadth of the definition and the evidence, I think that there is a serious question to be tried whether the removal of the trees is likely to significantly affect the environment and therefore whether an EIS was required. 18 Next, the council submits that s 112 of the EPA Act does not apply to s 88 of the Roads Act because s 88 authorises a roads authority, such as the council, to remove trees "despite any other Act or law to the contrary" and s 112 of the EPA Act is an Act or law to the contrary. In my view, there is at least a serious question to be tried as to whether that is so. On one arguable view, s 112 is not a "contrary" law or Act but merely a provision which relevantly says trees may be removed provided an EIS is furnished and considered where the tree felling is likely to significantly affect the environment. 19 In relation to s 88 of the Roads Act, the council says that it formed the required opinion that the removal of the trees was unnecessary for the purpose of removing a traffic hazard and points to the documents that were before the council to which I have earlier referred.

20 The applicant wishes to contest that the council formed that opinion and to contend that, even if it did, the opinion was manifestly unreasonable in the Wednesbury sense. Notwithstanding the high hurdle that the latter test presents, on balance I am prepared to accept that there is a serious question to be tried in those respects.

21 The applicant also says that it does not accept that the road was a public road, which is the type of road to which s 88 of the Roads Act and cl 98 of ISEPP are referable. However, nothing has been put before me which would suggest that it was not a public road and consequently I would not for that reason alone conclude that there was a serious question to be tried.

22 The council submits that this Court has no jurisdiction over the challenge to validity to the council's exercise of power under s 88 of the Roads Act. Judicial review proceedings such as these are in Class 4 of the Court's jurisdiction which is defined in s 20 of the Land and Environment Court Act 1979 (LEC Act). Section 20 enumerates proceedings under many statutes. The council's point is that s 20 does not refer to the Roads Act. Therefore, the council submits, the applicant must go to the Supreme Court to get any relief in relation to the s 88 Roads Act aspect. In short, in the council's submission, the applicant falls between two stools. 23 The council's argument comes down to this: the exercise of the s 88 Roads Act power can only be challenged in the Supreme Court and this Court cannot reach it; the exercise of the cl 98 ISEPP power can only be challenged in this Court and the Supreme Court cannot reach it. As neither court has jurisdiction over both, neither has power to grant the interlocutory injunctive relief which the applicant seeks (nor, it would seem, final injunctive relief). In my view that cannot be right. There is not a place in which the council becomes unreachable by either court. Self-evidently, it would be a serious matter if neither court had power to grant interlocutory relief.

24 There may be two possible answers, neither of which I have been able to consider in any depth due to the urgency of this application.

25 One is that the Court's ancillary jurisdiction in s 16A of the LEC Act is sufficient to enable it to deal with the s 88 Roads Act issue given that it has jurisdiction to deal with the cl 98 ISEPP issue. Both issues are so clearly related to the council's decision which is under challenge that they should be resolved together. Another possible answer is that the applicant commence additional proceedings in the Supreme Court and seek to have the Supreme Court transfer the proceedings urgently to this Court whereupon this Court would acquire jurisdiction over the whole dispute. In circumstances of urgency such as this, the latter course presents large practical difficulties in terms of granting urgent injunctive relief.

26 For present purposes, it is sufficient to say that in my view there is a serious question to be tried as to whether this Court has jurisdiction over the s 88 Roads Act issue and power to grant injunctive relief, at least in its ancillary jurisdiction. In order to put the jurisdictional issue beyond doubt, the applicant may wish to consider urgently commencing additional Supreme Court proceedings and having them transferred urgently here so that they can be joined with the present proceedings.

BALANCE OF CONVENIENCE 27 It is a significant consideration on the balance of convenience that the destruction of these trees is imminent. 28 Against that, the council points out that its decision was made one month ago and that the applicant has waited until today to bring the proceedings. There is some force in that observation. One of the consequences of such a late and urgent application is that the council itself has not had the opportunity to give the matter the consideration that otherwise it would have been given and the Court is put in position where it has to make a decision with little time for reflection. On the other hand, persons associated with the applicant have occupied themselves in the month that has passed in correspondence with the council in which they challenged the validity of the decision and gave the council an opportunity to present its case. 29 The council also points out that the applicant has not offered an undertaking as to damages. An undertaking as to damages is the usual price for an interlocutory injunction. However, the applicant invokes r 4.2(3) of the Land and Environment Court Rules 2007 which provide that in any proceedings on an application for an interlocutory injunction or an interlocutory order the Court may decide not to require the applicant to give any undertaking as to damages in relation to the injunction or orders sought by the applicant if it is satisfied that the proceedings have been brought in the public interest. Although I have had little opportunity to address the public interest question, I am satisfied on the material before me that the proceedings appear to have been brought in the public interest. I am prepared not to require the applicant to give an undertaking as to damages.

30 On the basis that there should be an urgent final hearing, I think that the balance of convenience favours the grant of an interlocutory injunction for a short period until the proceedings are finally determined or until further order. ORDERS 31 The Court makes an order restraining the respondent, by itself, its employees, contractors or agents from removing or from lopping the canopies of 14 Hills fig trees growing on Laman Street, Cooks Hill, Newcastle until final determination of the proceedings or further order. 32 By consent I make directions in accordance with the Directions dated 17 September 2010, initialled by me and placed with the papers. They provide for a final hearing on 27 September 2010 and for the filing and service of evidence and submissions in the interim.

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